The pushback against anti-democracy

With apologies for intruding on our warm glow of satisfaction at the election result (for many of us,if not all), today I have a reminder that it will take another ten years to unwind the damage that Theresa May caused at the Home Office. Her survival strategy when Home Secretary was to hide, disguise, obfuscate and frustrate, to obstruct scrutiny as far as was possible, and when the blame was getting too close, to throw underlings under the bus. 

It was Theresa May, you will recall, who was responsible for importing into Britain 35-year old 'child' refugees complete with beards and middle aged crows feet. I submitted a request under FOI for a copy of the guidance issued by the Home Office to immigration officers in identifying these child migrants. The usual delays and requests for clarification spun out their overdue response to a year before the Information Commissioner took up the case; the Home Office then ignored the Information Commissioner's ruling, and instruction to provide the information. I was just about booking the flight to London to give evidence in the High Court in a case to be brought by the ICO when the Home Office gave way, and provided a glossy DTP'd booklet. The only problem was, it bore a publication date after the date of my FOI request, and after all those adult 'children' had already been admitted. I gave up.

The next one I won't give up. The new select committee chairs will shortly be announced and I will be following closely any calls for evidence by the Home Affairs Select Committee with interest. This time it's the strategy Mrs May developed with regard to the National Crime Agency. The NCA has spent a considerable amount of our tax money in producing glossy, advertorial 'annual reports' describing how brilliant it is, what a huge threat the general public poses to the State, and how they need even more power. The problem is, some of the information given in last year's NCA wankfest was misleading - seemingly deliberately so. I submitted an FOI request to the Home Office, the NCA's parent. No can do, came the response. The NCA enjoys a total exemption from FOI requests on security grounds. Fine, I said, it's not about operational policing matters, it's about inaccuracies and misleading presentation of statistics already in the public domain in the annual report. Who answers for this publication? No-one. Not the Home Office and not the NCA. They could spend a million of tax money issuing glossy brochures telling us that women with unibrows should be subject to surveillance and not one member of the public, not one journalist, not one taxpayer can challenge it. It stinks. And it's got Theresa May's smug inept fingerprints all over it. Hide. Disguise. Obfuscate. Frustrate.

While the EU has not been responsible for Mrs May's dreadful tenure of the Home Office, it has I think been responsible for encouraging our unelected government officials in this impertinence against public scrutiny. They've learned bad ways from Brussels. The abolition of the LCD by the federast Blair and the creation of a Euro-style Ministry of Justice was surely just a first step towards a national police force under the command of the Justice Minister, and the complete disassociation from democratic and local control of our citizen constables.

Charles Moore writes a good piece in the Telegraph today, covering also the intrusion by the courts into matters that are democratic. Sometimes precipitated by well-funded saboteurs of the democratic process such as Gina Miller, sometimes by the dangers of compliance with 'dynamic' frameworks of law under which judges - and not even domestic ones - instead of Parliament continually modify and update the extent and effect of our statutes. Lord Sumption, in this year's Reith lectures, although himself a Remainer, deprecated this growth of 'lawfare' and the intrusion of unelected authority into the democratic process. Moore has a straightforward remedy - to row-back on Blair's pollution of our well-developed state institutions.

The obvious safeguard for reform – this is me speaking, not Professor Ekins – would be to restore in full the rights of the Lord Chancellor, which Tony Blair, in a careless piece of sofa government one weekend, threw away.

By a very British paradox, the age when, through the Lord Chancellor, the government theoretically had complete power over appointing judges was also the age in which there was least politicising of those appointments. Judges judged, and politicians did politics. Now we can get back to that.

Update - 50p coins
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On my post of 18th December I hoped that we would see the re-issue of the Brexit 50p coins. The government were ahead of me. The coins were approved by the Queen in Council on the 17th and millions will be released into circulation at the end of next month. Well Done! Carry on.  

Democracy Trumps Courts

Lord Sumption was clearly by accident or design a superb choice to deliver the Reith lectures this year. The current hysteria is seeing the courts and judges assailed by a plethora of very wealthy litigants, from London to Edinburgh and Belfast, litigants fired with zealous righteousness and with faces infused to a shade of puce with the justice of their cause. They are seeking to find a court, any court, that will assist them in blocking the nation's democratic decision to leave the EU. Sumption had this to say - albeit as part of a lecture on Human Rights law, but it fits -

Democracy, in its traditional sense, is a fragile construct.It is extremely vulnerable to the idea that one’s own values are so obviously urgent and right that the means by which one gets them adopted don’t matter. That is one reason why it exists in only a minority of states. Even in those states it is of relatively recent origin and its basic premises are under challenge by the advocates of various value-based systems. One of these is a system of law-based decision making which would entrench a broad range of liberal principles as the constitutional basis of the state. Democratic choice would be impotent to remove or limit them without the authority of courts of law. 

Now, this is a model in which many lawyers ardently believe. The essential objection to it is that it is conceptually no different from the claim of communism, fascism, monarchism, Catholicism, Islamism and all the other great isms that have historically claimed a monopoly of legitimate political discourse on the ground that its advocates considered themselves to be obviously right. But other models are possible. One can believe in rights without wanting to remove them from the democratic arena by placing them under the exclusive jurisdiction of a priestly caste of judges. One can believe that one’s fellow citizens ought to choose liberal values without wanting to impose them.

This recourse to private law is in many cases an attempt by those who do not enjoy democratic support  for their viewpoint to seek to bludgeon, compel and coerce a majority whom they cannot outvote into giving them their own way. As such, this use of our courts and judges is a clear abuse of process in an advanced democracy. It is open only to the very wealthy, and if it succeeds it unbalances our democratic equilibrium. Remember that Mrs Miller only has one vote, and it is worth exactly the same as your vote or my vote, however wealthy and well-connected she may be.

Sumption also examines in depth the relationship between law and democracy in the area of, for nations that have one, the constitution. Spoiler alert: he is opposed for very clear reasons to the adoption of a written constitution for Britain, and I'll tackle this in a future post.

And as that arsewipe Bercow must learn, an anti-democratic and Rogue Parliament and a bent Speaker hiding from the ballot box and the electors behind the walls of Westminster must also be brought to heel by the votes of the people.

Beware the 'dynamic' Trojan Horses

Lord Sumption ended this year's Reith lectures - the finest in my memory - with the conclusion that, in the struggle between law and democracy, it was democracy that should take precedence. He was particularly concerned over 'dynamic' arrangements such as the ECHR, which is not a fixed, static agreement but which changes and evolves over time, committing its signatories to compliance with whatever changes are made by the European Court of Human Rights. The scope of law that the ECtHR has permitted itself to enact is not limited or trivial, certainly not limited to the basic rights to which we signed up in the 30 articles of the UDHR in 1948 (the UDHR is not a dynamic treaty); as Sumption said, ECHR competencies now include ".. the legal status of illegitimate children, immigration and deportation, extradition, criminal sentencing, the recording of crime, abortion, artificial insemination, homosexuality and same sex unions, child abduction, the policing of public demonstrations, employment and social security rights, environmental and planning law, noise abatement, eviction for non-payment of rent and a great deal else besides." All of which should be, for the UK, matters for which our Parliament should be legislating, not taking Euro judge-law. 

As the Telegraph reports, there is now a show-down between the EU and Switzerland. The essential cause is Switzerland's rejecting a 'dynamic' treaty back in the 1990s and the EU's determination that she should now surrender to the EU effectively making Swiss law -

... the EU favours “dynamic alignment”, which means that the Swiss would be forced to accept updates of the EU rules they have aligned with in return for market access. It is a long-standing EU frustration that this wasn’t negotiated in the 1990s. The reason was of course the deep Swiss attachment to democracy and suspicion of agreeing to accede to EU rules that aren’t properly understood.

The EU also wants Switzerland to sign-up to the jurisdiction of the ECJ in disputes - also something that the democracy-loving Swiss have hitherto refused to do.The ECJ is NOT a court of justice as the anglophone world understands the word - it is a court of federal alignment, a political court whose mission is explicitly to further the integrationist political agenda of the EU zealots. Again, as a political court its evolution of the law is 'dynamic' and it overturns, muddles and distorts previous judgements when some new federast opportunity presents itself to the court.

Beware the EU, but at all costs beware the EU's 'dynamic' laws and agreements - we should abnegate not a groat of independence to these jackals, concede not a single EN millimetre without the British parliament having jurisdiction. They are trying to build an antidemocratic empire, and Europe's democracies - with the United Kingdom and Switzerland to the fore - must stand firmly against them.